1
S.B. Civil Misc. Appeal No.1549/2007
Narayan Prasad. vs. Smt. Rukma Devi & Ors.
S.B. Civil Misc. Appeal No.1549/2007
Narayan Prasad. vs. Smt. Rukma Devi & Ors.
Date : 8.12.2008
HON'BLE MR. PRAKASH TATIA, J.
Mr.DLR Vyas, for the appellant.
Mr.Bharat Devasi, for the respondents.
– – – – –
Heard learned counsel for the parties.
The appellant is aggrieved against the order of
remand dated 24.3.2007 passed by the Court of District
Judge, Pali in Civil Appeal Decree No.65/2006 by which
the first appellate court upheld the judgment and
decree passed by the trial court and by the same
judgment, remanded the matter to the trial court for
the purpose of deciding the issue of permanent
injunction.
Learned counsel for the appellant submitted that
the impugned judgment of the first appellate court
without reversing any finding on any of the issue
recorded by the trial court, is wholly illegal and
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S.B. Civil Misc. Appeal No.1549/2007
Narayan Prasad. vs. Smt. Rukma Devi & Ors.
further, the first appellate court by the impugned
judgment, upheld the judgment and decree of the trial
court for declaration and has not set aside any other
part of the decree, then the first appellate court
could not have remanded the matter. Otherwise also,
neither it is a case of reversal of main point by the
first appellate court or it is a case where retrial was
felt necessary by the first appellate court. Therefore
also, the matter could not have been remanded.
Learned counsel for the respondent vehemently
submitted that the first appellate court rightly
observed that the trial court has not properly
considered the evidence on record and particularly,
Ex.4.
I considered the submissions of learned counsel
for the parties and perused the record.
The operative part of the judgment of the first
appellate court reads as under :-
“अप ल अप ल र आश क रप स स क र क जत ह तर
घ षण त क उपच र हत! अप ल र / द# क पकरण ब बत अध नसर
न) ) ल) द र ज शनण+) ड-क द# ह, उस )र त रख ज त ह
सर ) शनषध ज क क 1 अध नसर न) ) ल) क शनद2 डद)
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S.B. Civil Misc. Appeal No.1549/2007
Narayan Prasad. vs. Smt. Rukma Devi & Ors.
ज त ह डक पद –
+ 4 1 ज तथ) अडकत डक) ग) ह5, उनक प6ण+
रप स अ ल कन कर1 अध नसर न) ) ल) )ह हस6स करत ह
डक उक दसत ज क प!ष9 1 डकस अशधक र# क तलब करन च ह
त , उस न) ) ल) स क क रप 1 भ तलब कर सकत ह, त डक
अध नसर न) ) ल) दसत ज क शनषप दन दसत ज 1 अडकत
तथ)= क क 1 सह# शनषकष+ शनक ल सक उपर क न!स र
अध नसर न) ) ल) क पकरण क शनसत रण करन हत! शनद2 डद)
ज त ह। पकक र न अध नसर न) ) ल) 1 डदन क 13-04-07 क
उपससरत रह।"
A perusal of the above order clearly shows that
the first appellate court upheld the decree so far as
the relief of declaration is concerned. The first
appellate court by the impugned judgment has not set
aside any of the findings of the trial court on any of
the issue, then the matter could not have been
remanded. The first appellate court has not framed any
issue nor remitted the matter to the trial court.
Therefore also, the matter could not have been sent to
the trial court. The first appellate court in the
impugned judgment observed that the trial court should
look into Ex.4 and in case, the trial court find it
necessary to summon any officer, the officer may be
summoned and thereafter, inference may be drawn. The
document Ex.4 produced by the plaintiff/respondent is a
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S.B. Civil Misc. Appeal No.1549/2007
Narayan Prasad. vs. Smt. Rukma Devi & Ors.
certified copy of the order passed by one of the party
to the litigation i.e. respondent no.2 – Rajasthan
Housing Board. Therefore, all the contesting parties
were before the first appellate court and they took
opportunity to contest the issue involved in the suit
for which evidence Ex.4 was produced.
Order 41 Rule 24 CPC is very clear in its terms
and it says that where the evidence upon the record is
sufficient to enable the appellate court to pronounce
judgment, the appellate court may, after resettling the
issues, if necessary, finally determine the suit,
notwithstanding that the judgment of the court from
whose decree the appeal is preferred has proceeded
wholly upon some ground other than that on which the
appellate court proceeds.
The wide scope of Order 41 Rule 24 CPC makes it
clear that as far as possible and if all evidence is
available on the record, the appellate court itself
should decide the appeal as well as the suit and even
if the trial court has not framed the proper issues and
not decided the issues, even then the appellate court
should decide the issue. The remand of the cases by the
appellate court unnecessarily has already been
condemned in several judgments and there appears to be
no reason for the appellate court to remand the matter
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S.B. Civil Misc. Appeal No.1549/2007
Narayan Prasad. vs. Smt. Rukma Devi & Ors.
when evidence is already on record. The appellate court
cannot remand the matter for rewriting of judgment nor
for having opinion of the trial court on the evidence
available on the record, unless it is necessary to
remand for the purpose of determination of additional
issues or when retrial is necessary.
Consequently, this appeal is allowed, the impugned
judgment dated 24.3.2007 is set aside and the matter is
remanded to the first appellate court for deciding the
appeal afresh on merits.
Both the parties are directed to appear before the
first appellate court on 6.1.2009.
The record be sent to the first appellate court
forthwith.
(PRAKASH TATIA), J.
S.Phophaliya